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MIP Copyright > Week 6 > Flashcards

Week 6 Flashcards

Copyright as an exclusive right (economic rights) I. Justification of economic rights in a process of law making. History of economic rights.

1
Q

What is monistic approach?

A

you can find in German Copyright Act.

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2
Q

What is dualistic approach?

A

You can find in France and Poland.

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3
Q

What is subjective right?

A

basis: property rights

  • effective against all third parties
  • connected to the technologies
  • transferable
  • with an aim to protect the financial interests of the author in his work.
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4
Q

What are the main rights presented in the Bern Convention?

A

The Bern rights:

  • Right of reproduction
  • Right of translation and adaptation
  • Right of public performance, broadcasting, - communication to the public
  • resale right (droit de suite)
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5
Q

What is the right of reproduction?

A

1

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6
Q

Right of reproduction:

A

definition: any activity that results in multiplication of work

  • right of distribution
  • public lending right
  • limitations to reproduction rights
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7
Q

What is a right of translation and adaptation?

A

1

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8
Q

Right of translation and adaptation:

A
  • evolved from the reproduction rights, now are separate because of their importance for creators
  • definition of translation and adaptation
  • often implemented within moral rights system
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9
Q

What is the rights of public performance, broadcasting and communication to the public?

A

1

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10
Q

Rights of public performance, broadcasting and communication to the public:

A

performance: any acoustic or visual presentation of the work for those who are present at the place of the performance.
public: does not necessarily mean many people (consider CJEU’s decision on public performance and communication to the public rights)

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11
Q

Communication to the public

A
  • evolved from the Art.11 tef BC (right of broadcasting)
  • right of “making (work) available to the public traces in the 1929 Rove revision conference:

4) the Expression “published works” means, for the purposes of this Convention, works copies of which have been made available to the public. The performance of a dramatic or dramatico-musical work or of a musical work, the exhibition of a work of art, and the construction of a work of architecture shall not constitute publication (Art. 4(4) of the Rome text of the BC

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12
Q

What WIPO Copyright Treaty is about ?

A

1

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13
Q

1

A

Art 6 stipulates that:
1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership..

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14
Q

What is umbrella right?

A

Art 8 (communication to the public) stipulates that: Without prejudice to the provisions of Article 11 (1) ii, 11bis 1 (i) and (ii), 11ter 1ii, 14 1ii, and 14 bis 1 of the Bern Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way members of the public may access these works from a place and at a time individually chosen by them

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15
Q

What are the two different possibilities for a legislator how to construct institutions of copyright exclusive rights?

A

The monastic and dualistic constructions.

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16
Q

What is the example Eugen Ulmer used to give when describing why copyright should be described as a monastic system?

A

A tree has roots symbolizing both material and economic interests of the author. Various prerogatives such as the rights of integrity and delegation represent branches resulting from the trunk. The trunk stands for the copyright as one unit, exactly like a tree.

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17
Q

What did Joseph Koehler claim?

A

Joseph Koehler claimed however it is almost contra productive not to distinguish between personal and an economical interest of the right holder that should be protected within one copyrights framework, and because there are totally different interests be protected, different functions that the copyrights should fulfill, the copyright ought to have different normative institutions specializing in protection of them.

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18
Q

Where can we find the dualistic system?

A

In France or Poland.

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19
Q

Where can we find the monistic system?

A

In German Copyright Act.

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20
Q

What do we want to protect if we consider copyright as a monastic universal construction ?

A

Personal rights of the author.

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21
Q

With what has the monastic system problems?

A

With justification of transferring personal rights from one person to another.

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22
Q

On what basis are copyright and economic rights constructed?

A

They are constructed on a basis of subjective rights that with a basis of property rights effective against all third parties and at least at the beginning they were also connected to the technologies available to people at a particular point in time.

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23
Q

What is the aim of copyright?

A
  • to be transferable to all the parties

- to protect the financial interest of the author in his work

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24
Q

Does the Bern Convention refers to various economic rights?

A

Yes.

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25
Q

To which economic rights does the Bern Convention refer?

A
  1. Making a collection of speeches and addresses or other similar works
  2. Right of Translation
  3. Reproduction in any manner or form
  4. Public performance of dramatic, dramatico-musical and musical works by any manner of means article
  5. Communication to the public of performances
  6. Broadcasting and any communication to the public but important by any means of wireless diffusion of science sounds or images
  7. Communication to the public by wire of broadcast and rebroadcasts
  8. Public communication of broadcast by loudspeakers or other analogous instruments
  9. Public recitation of literally works
  10. Public communication of recitations of literally work
  11. Public recitation and public communication of translation of literally works
  12. Adaptation arrangement and other alterations
  13. Cinematographic adaptation
  14. Distribution of cinematographic adaptations and its reproductions of works
  15. Public performance and communication the public by wire of cinematographic adaptations and reproductions
  16. The resale right that is also known droit de suite in original works of art and original manuscripts of writers and composers
26
Q

What does the resale rights droit de suite constitute?

A

The minimum protection that has to be provided in every union country.

27
Q

In what form must these economic rights be enshrined in various national copyright laws?

A

It is left to the discretion of contracting parties.

28
Q

What are the four categories of exclusive rights that are introduced in the Bern Convention?

A
  1. Right of reproduction
  2. Rights of translation and adaptation
  3. Rights of public performance, broadcasting and communication to the public
  4. Resale right (droit de suit)
29
Q

What is the most basic right in WIPO treaties?

A

Right of Reproduction.

30
Q

Why is the right of reproduction the most basic right?

A

It forms the basis of most forms of exploitation of a work.

31
Q

What is the general definition of reproduction?

A

The reproduction is any activity that results in multiplication of work.

32
Q

What does the right of distribution grant the author?

A

The exclusive right to authorize distributions of work to the public.

33
Q

Can the right owner prevent further transfers of the copy by third parties?

A

No.

34
Q

What are rental rights concerned with?

A

Computer programs, audiovisual works and phonograms.

35
Q

Is there often a rental right of software provided in national laws?

A

No.

36
Q

What is the Public Lending right?

A

The Public Lending right is a rental right addressed to libraries and other public non profitable institutions on doing in public interest that work that is on a non commercial basis.

37
Q

Are rental and lending rights harmonized in the EU?

A

Yes.

38
Q

Is the right for protection an exclusive right?

A

Yes.

39
Q

Are there limitations to the right for protection?

A

Yes.

40
Q

Why are there limitations to the right for protection?

A

In order to secure that the right balance is struck between the interests of the authors and the society.

41
Q

Is the production right vital in copyright?

A

Yes.

42
Q

What does the production right allow to the author?

A

It allows the author to go to the market to try and expose his or her work in conditions of exclusivity that should encourage the creation of works which in turn enhancing the pool of information knowledge and culture.

43
Q

Are the right of translation and the right of adaptation separate rights?

A

Yes.

44
Q

What is the adaptation of work?

A

Adaptation of work is adjustment of work, is rewriting or remodeling into another form in other to suit another medium of communication

45
Q

Where are the rights of translation and adaptation often implemented in?

A

In personal right protection or system of copyright contract law.

46
Q

Which rights are the most controversial ones?

A

Rights of Public Performance, broadcasting and communication to the public.

47
Q

What does performance mean?

A

Performance means any acoustic or visual presentation of the work for those who are present at the place of their performance.

48
Q

What does public mean?

A

It means a large number of people who do not qualify a family or close social acquaintance.

49
Q

What does broadcasting refer to?

A

Broadcasting refers to transmissions of sounds or images by electromagnetic wireless means for the purpose of enabling reception of the sounds or images which are transmitted by members of the general public.

50
Q

What is cable casting?

A

Dissemination of programs directly through cable.

51
Q

What kind of interpretation has been done by the Court of Justice regarding the right of communications?

A

Very strict.

52
Q

When did the phrase making work available to the public appear in the normative provision of Article 4(4) of the Rome Text of Berne Convention?

A

In 1929.

53
Q

What is called the umbrella solution?

A

The current situation in the 21st century, in the code of justice of the European Union’s jurisprudence you can essentially therefore find very easily referrals to Bern convention and also TRIPS agreement each time where those rights are in question.

54
Q

Does the WCT agreement build on a provision of the Bern Convention?

A

Yes.

55
Q

What does the WCT agreement attempt to?

A

It attempts to adopt international copyright for the Internet digital age.

56
Q

What does the WCT agreement regroup?

A

It regroups economic rights in clear categories.

57
Q

What is article 6 of the WCT agreement?

A

Authors of literally and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or the transfer of ownership.

58
Q

What is restated in the article 7 of the WCT agreement?

A

The right of rental.

59
Q

How are called the rights implemented in the WCT agreement?

A

Umbrella of rights.

60
Q

What is the basic element of the umbrella solution rights?

A

The basic element of the umbrella solution rights is the neutral legal characterization free description of interactive transmissions.

MIP Copyright (15 decks)

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